Case 3:01-cv MAP Document 857 Filed 09/10/18 Page 1 of 46. UNITED STATES DISTRICT COURT DISTRICT OF MASSACHUSETTS Western Division

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1 Case 3:01-cv MAP Document 857 Filed 09/10/18 Page 1 of 46 UNITED STATES DISTRICT COURT DISTRICT OF MASSACHUSETTS Western Division ) ROSIE D., et al., ) ) Plaintiffs, ) ) v. ) ) C.A. No MAP CHARLES BAKER, et al., ) ) Defendants. ) ) ) PLAINTIFFS OPPOSITION TO DEFENDANTS MOTION FOR SUBSTANTIAL COMPLIANCE AND TO TERMINATE MONITORING AND COURT SUPERVISION Steven J. Schwartz (BBO#448440) Cathy E. Costanzo (BBO#553813) Kathryn Rucker (BBO#644697) Center for Public Representation 22 Green Street Northampton, MA (413) Daniel W. Halston (BBO # ) Wilmer Hale, LLP 60 State Street Boston, MA (617) Frank Laski (BBO#287560) 154 Oliver Road Newton, MA (617)

2 Case 3:01-cv MAP Document 857 Filed 09/10/18 Page 2 of 46 TABLE OF CONTENTS Table of Exhibits iii I. Introduction II. The Applicable Legal Standard III. The Defendants Are in Substantial Compliance with the Provisions of the Judgment Concerning Notice, Education, Outreach, Screening, Referral, and Information Technology A. Notice, Informing, Education and Outreach ( 2-7, 36) B. Screening and Referral ( 8-10, 36) C. Role of EOHHS Agencies ( 11) D. Information Technology and Data Collection ( 39-45) IV. The Defendants Are Not in Substantial Compliance with the Provisions of the Judgment Concerning Assessments, Intensive Care Coordination, In-Home Therapy, the Timely Provision of Home-Based Services, the Service Delivery Network, and Service Coordination A. The Defendants Are Not in Compliance with the Assessment Requirements of the Judgment B. The Defendants Are Not in Compliance with the Requirements of the Judgment Concerning Intensive Care Coordination and In-Home Therapy FY2017 MPR for ICC FY2017 MPR for IHT FY2018 MPR for ICC FY2018 MPR for IHT C. The Defendants Are Not in Compliance with the Requirements of the Judgment Concerning the Timely Provision of Home- Based Services i

3 Case 3:01-cv MAP Document 857 Filed 09/10/18 Page 3 of 46 D. The Defendants Are Not in Compliance with the Requirements of.the Judgment Concerning the Service Delivery Network and the Capacity of Service Providers to Deliver Medically Necessary Home- Based Services Provider Network Capacity E. The Defendants Are Not in Compliance with the Requirements of the Judgment Concerning Service Coordination When Provided by Outpatient Therapists V. The Defendants Have Not Established a Durable Remedy A. Waiting Lists for Remedial Services Persist B. There Continues To Be a Lack of Engagement with Other Entities that Serve Children with SED C. The Defendants Failure to Develop a Sustainability Plan VI. The Court Should Terminate Monitoring and Its Active Supervision Over Certain Provisions of the Judgment But Continue Monitoring and Supervision of Other A. EPSDT B. Reasonable Promptness VII. Future Procedural Steps VII. Conclusion ii

4 Case 3:01-cv MAP Document 857 Filed 09/10/18 Page 4 of 46 TABLE OF EXHIBITS Exhibit 1: CANS Compliance Chart: compilation of data from defendants reports, Jan. 1, 2015 Dec. 31, Exhibit 2: CANS Compliance by Service: 7/1/2016-9/30/2016 Exhibit 3: Exhibit 4: Tracy , July 9, 2018, to the parties re: quarterly reports, lack of CANS Compliance Level of Care Reports Lambert Supplemental Affidavit Exhibit 5: MCI Average Length of Encounter, 7/1/2016-9/30/2016, FY2017, Q-1 Exhibit 6: Exhibit 7: Exhibit 8: Exhibit 9: Exhibit 10: Exhibit 11: Exhibit 12: Exhibit 13: Exhibit 14: Exhibit 15: Fiscal Year 2017 Mass. Practice Review (MPR) Practice Summary Report FY18 ICC MPR Practice Domain Results FY18 IHT MPR Practice Domain Results Youth Waiting for ICC at End of Month: FY2018, FY2017 (CSA Monthly Reports, Reports #5, #6) ICC Access Data FY2017, FY2018 (CSA Monthly Reports, CSA Monthly Provider Reports) IHT Waitlist and Capacity FY CMR Division of Healthcare Finance and Policy: CMR 52:00 Rates of Payment for Certain Children s Behavioral Health Services: adopted regulations 3/25/ CMR Code of Massachusetts Regulations Currentness Rate Provisions (Rate on Payment for Certain Children s Behavioral Health Services) Outpatient as a Hub for MassHealth Youth under 21: Results of FY2017 Outpatient Chart Review. Feb. 12, 2018 CSA Monthly Report for June 2018, Report 1: Sources of All Referrals to ICC for Current Month and Fiscal Year 2018 iii

5 Case 3:01-cv MAP Document 857 Filed 09/10/18 Page 5 of 46 I. Introduction The defendants have now moved to terminate monitoring and the Court s active supervision over the entire Judgment, based upon allegations of substantial compliance with every provision of the Judgment. Defendants Motion for Substantial Compliance and to Terminate Monitoring and Court Supervision (hereafter Defs Mot. ), Doc Their accompanying, revised Memorandum (hereafter, Defs Mem. )( Doc.854 ) 1 forthrightly acknowledges that, at least as of 2007, the Commonwealth was violating the Medicaid Act by failing to provide intensive home-based services as required by the Early Periodic, Screening, Diagnosis, and Treatment (EPSDT) and reasonable promptness provisions of the Act. 42 U.S.C. 1396a(a)(8) (promptness) and 1396a(a)(10)(A) & (43) (EPSDT); see Defs Mem. at 4-7. The Memorandum accurately describes the process for negotiating a remedial plan and the Court s ultimate incorporation of many portions of the defendants plan, with significant modifications, into its Judgment. Defs Mem. 7-9; see Rosie D. v. Patrick, 497 F. Supp. 2d 76 (D. Mass. 2007) and Judgment (Doc. 368). Finally, the Memorandum recounts significant efforts by the Commonwealth to comply with the Judgment by meeting its informing, education and outreach obligations; providing required screening and referral, creating an infrastructure for the provision of home-based services; and developing an information technology and data collection system. Defs Mem. at Given these improvements, the Court should partially disengage from these provisions of the Judgment. But the Memorandum fails to address, let alone prove, that the defendants currently provide: (1) assessments, using the Child and Adolescent Needs and Strengths (CANS), from all 1 The defendants original Motion, Memorandum, Statement of Material Facts, and supporting affidavits were filed on August 6, On August 27, 2018, the defendants filed a corrected version of their Memorandum, Statement of Material Facts, and the Affidavit of MaryLou Sudders, revising various dates for data reports as well as the rate increases allowed for various remedial services. 1

6 Case 3:01-cv MAP Document 857 Filed 09/10/18 Page 6 of 46 behavioral health providers, as required by the Judgment ( 13-16); (2) the core services of Intensive Care Coordination (ICC) and In-Home Therapy consistent with the standards in the Judgment ( 19-30, 33, 38) and the Commonwealth s own program specifications for each service; (3) timely access to all remedial services, as required by the Commonwealth s own access standards, their program specifications, the Judgment, and the Medicaid Act; (4) an adequate provider network and capacity to ensure the timely provision of medically necessary home-based services, as required by the Judgment and the EPSDT provisions of the Medicaid Act; and (5) Outpatient Therapy consistent with the Judgment s standards for care coordination. 2 Moreover, the Memorandum fails to demonstrate that the Commonwealth has in place a durable remedy, as reflected in a sustainability plan promised by the Commonwealth in the Disengagement Measures as well as commitments to maintain the infrastructure and remedial services in their current form. See Disengagement Measure 7 (Doc ). Given these outstanding areas of noncompliance with the Judgment and federal law, the Court should not fully disengage from its active supervision of the Judgment nor terminate monitoring over these outstanding provisions and obligations. 3 2 While many of the monthly and quarterly reports generated by MassHealth are routinely shared with the Court Monitor and the plaintiffs, there is considerable information that the defendants cite and rely upon to prove compliance with the Judgment that has never been provided to the plaintiffs or the Court Monitor. For instance, the defendants have never shared any information on expenditures for remedial services, aggregate utilization of services over time, or aggregate hospitalization rates, as reflected in of their SMF. In order to evaluate the defendants claims of substantial compliance with the Judgment, within a week of the filing of the defendants Motion, the plaintiffs promptly sought, through informal means, all information that was used or considered to support the allegations in 35, 42, 44, 47, 56, 58, 63, 69-71, of the SMF. The defendants recently provided summary data tables, but not the underlying data that was considered in creating the table, as requested. Thus, for many of the assertions in the SMF such as the number of youth receiving each remedial service, SFM, 56, 69, 70, it is impossible for the plaintiffs to analyze the data or challenge the defendants conclusion. 3 On August 6, 2018, the plaintiffs filed their Motion to Approve and Order Disengagement Measures, Actions to Improve Access to Remedial Services, and Provisions on Outpatient Services (Doc. 847). That Motion discusses at some length the need and legal basis for each supplemental order. See Docs , 847-2, and The Motion is incorporated by reference herein, and will not be repeated in detail here. However, if the Court allows the plaintiffs Motion, and enters any of the proposed orders, that will provide additional requirements which have not yet been satisfied, and which thus form an additional rationale for denying the Defs Motion. 2

7 Case 3:01-cv MAP Document 857 Filed 09/10/18 Page 7 of 46 II. The Applicable Legal Standard The Supreme Court has made clear that the defendants have the burden of proving substantial compliance with a remedial order entered by a court to correct a federal law violation. See Freeman v. Pitts, 503 U.S. 467, 494 (1992) ( The school district bears the burden of showing that any current [racial] imbalance is not traceable, in a proximate way, to the prior violation. (emphasis added); Brown v. Bd. of Educ. of Topeka, Shawnee Cty., Kan., 978 F.2d 585, 588 (10th Cir. 1992). The defendants Motion, Memorandum, Statement of Material Facts (SMF), and supporting affidavits (Docs ) effectively concedes this point, in the defendants effort to prove substantial compliance with the Judgment. See Defs Mem ( the Court should now, based on the substantial compliance showing, [terminate monitoring and reporting] ). Thus, there is now no debate that the defendants must prove that they have substantially satisfied their obligations under the Judgment, in order to request that the monitoring, reporting, and active supervision provisions of the Court s order end. 4 The Supreme Court has also made clear that a federal court may, and should where appropriate, gradually reduce its oversight of remedial orders by partially or incrementally disengaging from selected obligations of a remedial order, after determining that the defendants have satisfied specific provisions of that order. Freeman, 503 U.S. at 490. The concept of incremental disengagement is designed to respect the role and responsibilities of state officials in managing state service systems when they have complied with some, but not all, of their federal 4 The defendants do not contend that the five-year projected timeframe for terminating reporting and monitoring, as set forth in 52, is a drop-dead date which is divorced from a showing a substantial compliance. Nor could they, since that would be both contrary to the language in the Judgment, as well as Supreme Court precedent. See Judgment, 52 ( This Judgment constitutes a final order of judgment, subject to the Court s exercise of ongoing jurisdiction to insure implementation ) (emphasis added). Rather, the five-year monitoring and reporting period was the Court s reasonable and best estimate of the time necessary to complete each of the Implementation Projects described in of the Judgment, and to allow sufficient time to assess the success of these efforts. As the defendants recognize, there were early and ongoing warning signs that this projection was optimistic, and agreement by all parties reflected in subsequent court orders that monitoring and reporting, including periodic status conferences and ongoing court oversight, must continue. Defs Mem

8 Case 3:01-cv MAP Document 857 Filed 09/10/18 Page 8 of 46 remedial obligations, while ensuring ongoing judicial oversight over the outstanding provisions of the remedial order. Three criteria are relevant to assessing whether partial disengagement is appropriate: (1) whether there has been full and satisfactory compliance with the decree in those aspects of the system where supervision is to be withdrawn; (2) whether retention of judicial control in those aspects of the system is not necessary or practicable to achieve compliance with the decree in other facets of the system; and (3) whether the state defendants have demonstrated their good-faith commitment to the whole of the court's decree and to those provisions of the law and the Constitution that were the predicate for judicial intervention in the first instance. Freeman, 503 U.S. at 491; Wyatt By & Through Rawlins v. Rogers, 985 F. Supp. 1356, 1385 (M.D. Ala. 1997). Finally, the Supreme Court has recognized that before a court terminates its supervision of a systemic remedial order, it must be assured that the federal law violations have ended, that the conditions which gave rise to those violations will not resurface when the court terminates its active supervision of its remedial order, and that there is proof that a durable remedy has been put in place so as to ensure that systemic improvements will be sustained. Horne v. Flores, 557 U.S. 433, 450 (2009); Bd. of Educ. of Oklahoma City Pub. Sch. v. Dowell, 498 U.S. 237, (1992). A history of good faith compliance is a key factor in concluding that remedial reforms with be sustained. Freeman, 503 U.S. at 498. III. The Defendants Are in Substantial Compliance with the Provisions of the Judgment Concerning Notice, Education, Outreach, Screening, Referral, and Information Technology. A. Notice, Informing, Education and Outreach ( 2-7, 36) The defendants make a reasonable showing that they have complied with CMS notice and informing requirements for EPSDT, as well as the corollary provisions of the Judgment. 4

9 Case 3:01-cv MAP Document 857 Filed 09/10/18 Page 9 of 46 While these requirements are ongoing, and cannot be limited or proven only by the actions taken in that are discussed in Defs Mem. at 20-21, SMF at 3-6, 9-18, there is evidence that the Commonwealth continues to provide information to Medicaid recipients and their families about its EPSDT program and the remedial services, that Managed Care Entities (MCEs) disseminate information to families about their providers, locations, and eligibility criteria for the remedial services, and that state agencies inform their employees about the new services. The plaintiffs have recognized these efforts for some time, not challenged the defendants ongoing compliance with these provisions, and not required that additional actions be taken in these areas, as part of any Disengagement Criteria or Disengagement Measures. B. Screening and Referral ( 8-10, 36) Similarly, the defendants have made an adequate showing that reforms to the Commonwealth s screening program to incorporate behavioral health screening protocols, to provide additional compensation to pediatricians and other professionals who perform behavioral health screens, to require the use of selected screening instruments, to collect and track screening data, and to encourage although not require referrals to behavioral health professionals when a child is screened positive for a behavioral health condition are important reforms to the State s EPSDT program. Defs Mem , SMF at 6-8, And similarly, the plaintiffs have recognized these efforts for some time, not challenged the defendants ongoing compliance with these provisions, and not required that additional actions be taken in these areas, as part of any Disengagement Criteria or Disengagement Measures. C. Role of EOHHS Agencies ( 11) The defendants continue to allow youth and families to request remedial services without the need for a referral from a screening entity or a primary care provider. Defs. Mem. at 22; 5

10 Case 3:01-cv MAP Document 857 Filed 09/10/18 Page 10 of 46 SFM at 8, 23. Since there is no evidence that remedial services are denied due to a lack of a referral from a primary care provider, it appears that the defendants are in substantial compliance with 11 of the Judgment. D. Information Technology and Data Collection ( 39-45) Finally, in the past six years, the defendants have taken a number of additional actions to improve data collection, reporting, and oversight of their service delivery system. At the Court s direction, they began sharing information on timely access to Community Service Agencies (CSAs) and subsequently, on access for all remedial services, through monthly reports that include provider-specific waiting times, capacity, and utilization. They began generating quarterly, provider-specific reports on Mobile Crisis Intervention (MCI). They started sharing information about CANS utilization by provider and level of care. They assumed responsibility for the annual client review (renamed the Massachusetts Practice Review or MPR) and disseminated very abbreviated reports on their findings for ICC and IHT. After extensive negotiations and significant pressure from the Court, they agreed to generate outcome reports using CANS data. Recently, they began collecting information about Outpatient Therapy providers who serve as service coordinators and the gateway to several remedial services. Unfortunately, and without notice to the Court Monitor or the plaintiffs, they suspended systemwide evaluations of wraparound principles and supervision, using the Wrap-Around Fidelity Index (WIFI) and the Team Observation Measure (TOM). Nevertheless, unlike their 2012 Report to the Court which did not include most of these data initiatives, the defendants now have demonstrated a substantially enhanced commitment to, and production of, data on their EPSDT program and the remedial services required by the Judgment. Defs Mem. at 28-29; SMF at 18-22,

11 Case 3:01-cv MAP Document 857 Filed 09/10/18 Page 11 of 46 While there remain significant implementation issues with the defendants use of this data to ensure that MassHealth requirements on CANS utilization, timely access to remedial services, an adequate array of providers for all remedial services, and the appropriate provision of ICC and IHT are met, basic information is now regularly available on all of these issues. Therefore, the plaintiffs believe that the defendants have now made an adequate showing that they are in compliance with these provisions of the Judgment. IV. The Defendants Are Not in Substantial Compliance with the Provisions of the Judgment Concerning Assessments, Intensive Care Coordination, In-Home Therapy, the Timely Provision of Home-Based Services, the Service Delivery Network, and Service Coordination. Although the SMF cites numerous documents, reports, and recently-compiled data to support the assertions of compliance in Defs Mem , it is noteworthy that the defendants make no mention of contradictory data or evidence that undermines these assertions. Specifically, the annual CANS assessment report that identifies the percent of completed CANS by each type of service provider, the findings of the 2017 and 2018 Massachusetts Practice Review (MPR), recent CSA and IHT waiting list reports, regional and provider-specific capacity reports, and MassHealth s 2017 outpatient report are all noticeably absent in the SMF and never discussed in the Memorandum. This information all of which is routinely shared with the parties and the Court Monitor and frequently cited in periodic status reports to the Court is compelling evidence of noncompliance with various provisions of the Judgment. A. The Defendants Are Not in Compliance with the Assessment Requirements of the Judgment. In its 2006 liability decision, the Court underscored how the absence of a comprehensive, diagnostic assessment can harm youth with SED and their families, finding that without a clinically appropriate, detailed assessment of an SED child, proper treatment is obviously 7

12 Case 3:01-cv MAP Document 857 Filed 09/10/18 Page 12 of 46 impossible. See, e.g. Rosie D. v. Romney, 410 F.Supp.2d 18, 34 (2006). The Court cited trial evidence showing a number of deficiencies in the State s assessment of youth with SED. It found that there was no way to assure youth received assessments at any particular time or in a consistent form. Id. In fact, the evidence made clear that thousands of SED youth got no comprehensive assessments at all. Id. Moreover, many, if not most, of assessments that were conducted lacked the depth, analysis and comprehensiveness needed to form the foundation for long-term treatment. Id. To comply with the diagnostic requirements of EPSDT, the Court ordered the adoption of a standardized, comprehensive assessment tool, to be performed at specific times, used to identify medically necessary services, and shared with those responsible for creating an individualized treatment plan with the youth and family. Judgment ( 13-16). Following consultation with the plaintiffs, the Court Monitor and experts, the defendants selected the Child and Adolescent Needs and Strengths (CANS) as their system-wide, standardized comprehensive assessment tool. As its name indicates, the CANS is an instrument that assesses the strengths and needs of a child, as well as of the child s family or caretaker. It examines the child s and family s functioning across multiple domains, including home, community and school. The CANS asks the responder usually a family member or caretaker to answer several questions organized under six general categories: problem presentation, risk behaviors, functioning, care intensity, caregiver capacity, and strengths. 5 The individualized clinical information collected through the CANS is used to inform treatment planning and ensure that treatment addresses identified needs. Judgment ( 15). The CANS also plays an important role ensuring youth who meet medical necessity criteria for Intensive Care Coordination (ICC) are referred to this core remedial service. These youth include children and 5 The CANS was developed by Dr. John Lyons to provide a structure and guide for evaluating both the strengths and needs of children with behavioral health conditions. It has been repeatedly tested and validated, and is now being used by several States. 8

13 Case 3:01-cv MAP Document 857 Filed 09/10/18 Page 13 of 46 adolescents transitioning from acute treatment settings or residential/inpatient programs operated by the Department of Mental Health (DMH). Id., 16(d),(e). In their pending motion, the defendants recite a litany of contractual and regulatory steps they have taken to require administration of the CANS, but fail to mention their own data showing persistent noncompliance with these requirements across provider and service settings. For instance, the defendants note that [i]n-patient behavioral health providers and Community- Based Acute Treatment ( CBAT ) service providers must complete a discharge planning process inclusive of the CANS assessment, and make referrals for any medically necessary services. SMF at 9, 29. However, they are silent on providers noncompliance with this regulation. Over a 24-month period between the 3rd quarter of FY2015 and the 2nd quarter of FY2017, the last period for which data is available the weighted average of CANS compliance across managed care plans ranged from 36-54% for inpatient settings, and 38-69% for CBAT programs. See CANS Compliance Level by Service, data compilation covering January 1, 2015 December 31, 2016, attached as Exhibit 1. Notably, the higher scores, 54% and 69%, for inpatient and CBAT, respectively, were achieved in 2015 and never repeated. Further, the performance of providers in individual managed care plans often was significantly lower than the weighted average. For instance, in the first quarter of FY2017, four of the six managed care plans reported inpatient compliance scores less than the weighted average of 48%, and three of six plans reported CBAT compliance scores lower than the reported average of 49.73%. See CANS Compliance by Service, (July 1, 2016 September 30, 2016), attached as Exhibit 2. 9

14 Case 3:01-cv MAP Document 857 Filed 09/10/18 Page 14 of 46 The defendants have not produced data on CANS compliance since the second quarter of FY17, due at least in part to unresolved technological challenges. 6 Notably, the defendants have produced no data demonstrating compliance with CANS assessments for any DMH facilities or programs, even though DMH is a central provider of children s mental health services and probably the primary provider of intensive, facility-based services. For youth whose behavioral health needs require inpatient or other 24-hour acute treatment, the absence of a CANS assessment could not come at a worse time. Navigating discharge from these short-term treatment settings is an extraordinarily difficult and stressful experience for youth and families. See Supplemental Affidavit of Lisa Lambert 4, attached as Exhibit 4, (hereafter Lambert Supp. Aff. ). Referrals to home-based services could mean the difference between a stable and well-planned transition, and a continuing cycle of behavioral health crises, repeated re-admission to higher levels of care, missed school, even criminal justice or child welfare involvement. Id.. After a lengthy out-of-home placement, youth often need significant supports and services, including a wraparound team and coordination of care across home, community and school settings. Lambert Supp. Aff., 5 A timely CANS assessment performed during the discharge planning process allows the youth and family to engage home and community-based service providers prior to discharge, to involve them in transition planning, and to ensure a comprehensive treatment plan is in place on the day the youth leaves the facility. Id. Indeed, the availability of the home-based services often avoids prolonged out-of-home placement, by offering a way to facilitate timely discharge. Id. When CANS assessments are not completed, 6 See Exhibit 3, from Margot Tracy to the parties, dated July 9, 2018: CANS Compliance Level of Care this report has been unavailable for several months now; it is based on the individual MCE BH-24 report, which has been suspended due to a CANS database issue which IT is working to resolve. 10

15 Case 3:01-cv MAP Document 857 Filed 09/10/18 Page 15 of 46 consistent with the Judgment and the State s own regulatory and contractual requirements, youth and families can experience delays in access to care, poorly planned discharges, heightened risks in their homes and communities, and serious set-backs in their long term recovery. Id. at 4-5. Moreover, as the defendants own data shows, even youth directly engaged with remedial service providers do not receive a CANS assessment as required. Between July 1, 2016 and September 30, 2016, IHT providers only complied with the CANS requirement 75% on average, and ICC providers 87.5% of the time. See Ex.2. Defendants cannot demonstrate substantial compliance with Section B of the Judgment if they fail to enforce the very requirements established to remedy deficiencies in the assessment and diagnosis of class members. Nor can they demonstrate that they have established a sustainable and durable plan of correction in this area, when 50% youth in inpatient and CBAT levels of care are still not receiving a CANS assessment, more than 10 years into the implementation process. Therefore, the Court should continue its monitoring and judicial oversight of paragraphs of the Judgment. B. The Defendants Are Not in Compliance with the Requirements of the Judgment Concerning Intensive Care Coordination and In-Home Therapy. In support of their Motion to Terminate, the defendants recite steps taken in 2008 and 2009 to develop and launch the four remedial services, including the two key services, Intensive Care Coordination (ICC) and In-Home Therapy (IHT). 7 More recently, as promised in the Disengagement Criteria, the defendants developed practice guidelines for IHT, IHBT, TM and 7 These steps included: (1) amending the Medicaid State Plan to include new remedial services; (2) creating Medical Necessity Criteria that establish service eligibility, continuing care, and discharge planning requirements; and (3) drafting Program Specifications that describe how the services are to be provided and by whom. Memo at 24-27; SMF at 13. See defendants Exhibit E, Doc or (accessed September 7, 2018). 11

16 Case 3:01-cv MAP Document 857 Filed 09/10/18 Page 16 of 46 MCI. 8 Yet the defendants filing is silent as to how remedial services are being provided to class members today saying nothing about their quality, effectiveness, or fidelity to the specifications and service standards set out above. 9 By initiating the required remedial services and funding those services over the past eight years, the defendants suggest that they have fully discharged their obligations under the Judgment. See, e.g., SMF at They make no effort to demonstrate that youth are actually receiving remedial services consistent with the Judgment, with the program specifications that govern each service, and with standards that they created to ensure adequate service implementation. As with the CANS assessment process, they deliberately sidestep any discussion of data concerning the adequacy of ICC and IHT, and the findings of their own system reviews which demonstrate that those services are not being provided consistent with the Commonwealth s own standards. Over the years, both the Court Monitor and the defendants have employed various evaluation tools to assess the home-based service system. In 2016, the defendants assumed full responsibility for this system review process, and designed the Massachusetts Practice Review (MPR) to serve as the State s primary mechanism for evaluating the adequacy, quality, and 8 For example, IHT performance standards required by paragraph 38(c)(viii) of the Judgment and titled CBHI IHT Practice Guidelines can be found at This document sets out expectations for critical elements of service provision, including intake, assessment, treatment planning, care coordination, supervision and transition planning. The equivalent document for ICC is titled Program Description and Operations Manual and can be found at 9 For instance, while the amended program specifications for MCI allow crisis services to be provided for up to seven days, rather than the original 72 hour-limit set forth in the original MCI specification, there is no information about the adequacy, appropriateness, or necessity of extended treatment by MCI providers. This is particularly important given the Commonwealth s abandonment of the Crisis Stabilization model described in the Judgment, which was designed to address ongoing crisis situations. In fact, the only information available at all on this critical performance question is that virtually all MCI encounters last less than 72 hours, suggesting that MCI does not offer extended crisis support and that the absence of performance standards on this issue has immense consequences to children, youth, and families. See Average Length of MCI Encounters, attached as Exhibit 5. 12

17 Case 3:01-cv MAP Document 857 Filed 09/10/18 Page 17 of 46 effectiveness of these services. 10 The MPR focuses on ICC and IHT because of their central roles in the service system, and their responsibility to coordinate delivery of other remedial services. 11 See FY2017 MPR Report, attached as Exhibit 6. The MPR examines required standards of practice through the lens of individual service delivery, giving it a unique and important perspective on implementation of the remedy. A random sample of youth and families is drawn from across the state, based on their participation in either ICC or IHT. Once consent is obtained, trained reviewers examine relevant medical records and conduct interviews with multiple informants, including the youth, the caregiver and the IHT or ICC provider. The MPR examines service system performance across multiple domains, including youth and family progress. Reviewers rate the adequacy of provider practice using a scale from 1 to 5, with 1 being adverse and 5 being exemplary. Individual scores are then aggregated to determine the percentage of clinical practice experienced by youth and families as adverse, poor, fair, good or exemplary. Since the review is based upon a statistically random sample of all children and youth receiving ICC and IHT, the findings from the MPR are generalizable to all class members in these programs. The MPR provides significant evidence of the status of compliance with the Rosie D. Judgment, including whether ICC and IHT are delivered consistent with the requirements of the Judgment, established service specifications, and practice standards. The defendants acknowledge the significance of the MPR, describing the tool as a means of analyzing quality 10 The defendants contract with the Boston-based Technical Assistance Collaborative (TAC) to complete these annual reviews. 11 See Ex. 6, MPR Report at 1 ( The MPR is a qualitative case review tool that is implemented by trained reviewers who examine the clinical record and interview multiple stakeholders, including the CBHI service provider, the caregiver, the youth (if over 12), and other formal providers who work with the youth and family. MPR reviews are specifically focused on In-Home Therapy (IHT) and Intensive Care Coordination (ICC) services because of the critical role these services play as the hub of care coordination for the youth and families served. Quantitative ratings combined with qualitative observations allow for examination of trends in IHT and ICC service delivery practice and youth and family progress since their enrollment in these services, and ultimately provides an understanding of the current state of practice by service, by agency/provider, and for the system overall ). 13

18 Case 3:01-cv MAP Document 857 Filed 09/10/18 Page 18 of 46 of care and overall outcomes, see Defs Mem. at 28, and to inform the improvement of services and programming. SMF at 20 ( 78). Several specific compliance requirements in the parties Joint Disengagement Measures are based on the MPR, including the adequacy of care coordination, clinical assessments, service delivery, treatment planning, team formation and team participation. In order to satisfy the Joint Disengagement Measures, there must be a 10% annual increase in the number of services considered good or better by the MPR. This formula for incremental change uses baseline data from ICC and IHT system performance gathered in Additionally, the Joint Disengagement Measures required that no youth should experience adverse practice (a rating of 1 on the MPR scale) except in rare circumstances. See Doc at 2-3. The most recent annual MPR report was issued in January It included data from 60 ICC recipients and 61 IHT clients collected between July 1, 2016 and June 30, See Ex. 6. The findings, as discussed below, demonstrate that the Commonwealth is not in compliance with the Judgment s provisions on ICC and other remedial services. 1. FY2017 MPR for ICC The FY17 ICC report raised significant concerns about the quality of ICC services, and specifically, providers ability to deliver the service consistent with the requirements of the Judgment and MassHealth s performance specifications and practice guidelines. More than two-thirds of youth received assessments and service planning that fell short of the good or accepted practice rating. Id. at 15. Similarly, the formation of youths treatment teams failed to meet the standards for good practice in 64% of cases. Id. at

19 Case 3:01-cv MAP Document 857 Filed 09/10/18 Page 19 of 46 Even more troubling were the number of youth whose ICC practice was rated poor or adverse, meaning youth are receiving services that did not meet minimal established standards of practice, or where practice was absent, wrong, possibly harmful or implemented in ways that were inappropriate, harmful or contraindicated. Id. at 11. For instance, in the area of assessments, 28% of the cases were rated poor. Id. at 15. An additional 3% of assessments were categorized as adverse to the youth and family. Id. The remaining 38% of ICC assessments were rated as fair meaning they did not consistently meet required standards for even an adequate assessment. Id. As noted in Section IV.A, infra, inadequate or incomplete assessments can have cascading negative effects for youth s treatment planning and access to medically necessary services. When nearly one-third of all clinical assessments reflect poor or adverse practice, it suggests remedial providers are failing to consider family strengths and needs, cultural views, or natural supports. Id. at 10. They may also be overlooking critical diagnostic information or failing to identify significant behavioral risks that can jeopardize the child s health, safety and welfare. 2. FY2017 MPR for IHT The FY2017 IHT practice review (the agreed-upon measure for IHT compliance in calendar year 2017) also failed to meet disengagement benchmarks for assessment and service planning. See Ex. 6 at Despite incremental improvements over FY2016 scores, 64% of clinical assessments and 58% of care coordination still failed to meet the good practice standard. Id. at 15. Service planning scores remain unchanged from 2016, with 64% of practice rated as less than good. Id. MPR progress ratings showed only 36% of youth were making good or better progress as a result of remedial services. Id. at

20 Case 3:01-cv MAP Document 857 Filed 09/10/18 Page 20 of 46 There were findings of poor and adverse practice across multiple IHT service domains, including assessment, service delivery, team participation, care coordination and transition planning. Strikingly, 11% of the assessments conducted for youth in IHT in FY17 involved adverse practices that were potentially harmful to the child; 23% fell into the poor practice category and 30% represented fair practice. Id. at 15. As with the ICC results, about two-thirds (64%) of IHT assessments failed to meet the good practice standard. Id. A full 36% of care coordination and 26% of service planning was rated as adverse or poor, along with 22% of service delivery, 24% of team participation, and 38% of transition planning. Id. As noted above, these findings suggest that 20% - 33% of youth are receiving remedial services that did not meet minimal established standards of practice, or, even worse, where practice was absent, wrong, possibly harmful or implemented in ways that were inappropriate, harmful or contraindicated. Id. at FY2018 MPR for ICC In the fall of 2017, the defendants conducted a new set of MPR reviews for ICC. 12 The findings of these reviews were previously designated as the baseline for assessing compliance with the 2017 Disengagement Measures. However, as evidenced by the most recent findings, the defendants failed to meet established benchmarks in three of five areas: clinical assessments, service planning, and care coordination. See FY18 ICC MPR Domain Results, attached as Exhibit 7. Nearly two-thirds of ICC clinical assessments failed to meet the good (accepted) practice standard. Not surprisingly, other aspects of service delivery suffered as a result. Id. Reviewers found that 55% of youth s service planning and 50% of team formation was inconsistent with good practice. Id. An additional 56% of youth were denied good transition 12 These late 2017 reviews will eventually be incorporated in the FY2018 annual MPR report, along with IHT reviews conducted during the Spring of

21 Case 3:01-cv MAP Document 857 Filed 09/10/18 Page 21 of 46 planning, and 45% of youth had care coordination that fell below good practice standards. Id. Overall, only 27% of the youth reviewed experienced good or better progress as a result of these remedial services. Id. As in FY2017, a significant percentage of ICC practice was found to be poor or adverse to youth and families: 22% of assessments; 25% of service planning; 18% of team formation; 11% of team participation; 14% of care coordination; and 25% of transition planning received these designations. Id. Thus, between 33% and 61% of youth receive ICC services that fail to meet the clinical standard for good or accepted practice, as defined by the defendants in the context of the Judgment. Id. 4. FY2018 MPR for IHT In late August 2018, defendants released the FY2018 MPR scores for IHT. See FY2018 MPR IHT Review Practice Domain Results, attached as Exhibit 8. Remarkably, the percentage of good or better clinical practice declined across the board in the areas of assessment, service delivery and planning, team formation and participation, care coordination, and transition planning. Id. Even the measure of youth progress decreased from 36% to 31% good or better progress. Id. The amount of poor and adverse practice in assessment and service planning decreased by 1% point, and similar modest reductions occurred in transition planning and service delivery. Id. Moreover, and of particular concern, the percentage of care that did not meet minimal established standards or was absent or harmful to youth actually increased in other areas. Id. In FY18 the MPR showed 41% of team formation and 31% of team participation was poor or adverse, up from 19% and 24%, respectively. Id. Similarly, poor or adverse care coordination in IHT increased by 10% from 26% to 36%. Id. 17

22 Case 3:01-cv MAP Document 857 Filed 09/10/18 Page 22 of 46 Although the MPR has demonstrated some progress in selected areas, these scores make clear that continued court oversight is required to ensure ICC and IHT services are delivered as required by the Judgment and the defendants own service specifications and standards. Defendants cannot demonstrate substantial compliance with the standards set out in Section C and paragraph 33(b) of the Judgment when less than half of youth sampled are receiving ICC or IHT services that are considered good practice or better, and as much as a third are subject to practice that is rated poor or adverse. When remedial services are so far below what is considered accepted practice, youth and families make little progress, are placed at risk, and may even be harmed. See Lambert Supp. Aff. at 3, 18. The quality of care they receive should not depend on where they happen to live, or the provider who happens to cover their region. Id. Without greater consistency and adherence to practice standards, youth will not have the full benefit of the remedy in this case, and will continue to experience adverse outcomes like unnecessary hospitalization, time out of school, and child welfare or criminal justice involvement. Id. C. The Defendants Are Not in Compliance with the Requirements of the Judgment Concerning the Timely Provision of Home-Based Services. The Court s liability decision found a violation of both the EPSDT and the reasonable promptness provisions of the Medicaid Act. Rosie D., 410 F. Supp. 2d. at 53. Its Judgment mandated that all remedial services must be provided promptly. Rosie D. v. Patrick, 497 F. Supp. 2d 76 (D. Mass. 2007). Promptly means consistent with state timeliness standards that are mandated by federal law, 42 C.F.R (e), as well as with MassHealth program specifications that are mandated by 38(c)(vii) of the Judgment. For nearly a decade, during this post-judgment phase of Rosie D., the parties, with the oversight and aid of the Court, have contended with and engaged in litigation over the 18

23 Case 3:01-cv MAP Document 857 Filed 09/10/18 Page 23 of 46 defendants continuing violations of their Medicaid obligations under federal EPSDT and reasonable promptness mandates, as well as their own 14-day access standard that was created in response to the plaintiffs 2011 Supplemental Motion to Ensure Timely Access to Remedial Services (Doc. 542). Yet despite almost eight years of judicial restraint, marked by at most intermittent improvements in the length of illegal waiting lists for EPSDT services, the defendants recent status reports and their monthly data reports show consistent noncompliance with the timely access standards and their program specifications for remedial services. See Defendants September 13, 2017 Status Report on Implementation (Doc. No. 813) and November 17, 2017 Status Report on Implementation (Doc. 820). It is beyond dispute that the problem of timely access to ICC and IHT services waiting lists and noncompliance with access requirements has persisted since the inception of the remedial services ordered by the Court. Rather than effectively initiate reforms and improve access to ICC, IHT and other remedial services, the defendants have resisted taking significant new actions or proposing effective improvement plans, as requested by the Court. Instead, in response to the plaintiffs 2011 Motion to Ensure Timely Access, they simply abandoned the original 3-day access standard that was incorporated into the program specifications for IHT and other remedial services, even though these specifications and the requirements to prompt appointments had been negotiated by the parties, presented to and approved by CMS, and submitted to the Court as evidence of compliance with 38(c) of the Judgment. The defendants sought to justify their actions based upon: (1) an analysis of the access standards of similar intensive care coordination programs in other states; and (2) a review by an advisory committee of the New England Council of Child and Adolescent Psychiatry (NECCAP). Significantly, neither source supported MassHealth s revised 14-day access standard. 19

24 Case 3:01-cv MAP Document 857 Filed 09/10/18 Page 24 of 46 The state comparison, set forth in the Affidavit of Margot Tracy, Doc , reviewed ICC programs in Milwaukee, Wisconsin, Indiana, Maryland, and Arizona. They each had mandatory requirements that appointments must be scheduled within 3 days (Indiana and Maryland) or 7 days (Arizona and Wisconsin). Id. at 3. The NECCAP which functions as the advisory group to MassHealth on EPSDT periodicity schedules that are required by the Medicaid Act recommended an outside limit of 10 days between the time of request for ICC and the first meeting with ICC. See Doc The defendants rejected the findings of both of these reports, and instead adopted a 14- day access standard for ICC and other remedial services. The Court, somewhat reluctantly, deferred to the defendants proposal, but insisted on periodic, provider-specific data to assess compliance with this extended standard. Unfortunately, lengthening the access standard to 14 days did little to bring defendants into compliance. Over the last eight years, waiting lists for ICC and IHT services have persisted and grown over time. This record of noncompliance has occurred, despite this Court s November 29, 2011 Order to Ensure Timely Access to Remedial Services directing defendants to effectuate management strategies specifically targeting the reduction, and ultimately the elimination, of waiting lists for ICC services. See Doc. 557, 5 (emphasis supplied). A graphic depiction of this historical noncompliance illustrates how long children and families wait for core services like ICC and IHT, and, strikingly, how many CSA providers have waiting lists that vastly exceed the Medicaid access standard. See Youth Waiting for ICC, FY17-18, attached as Exhibit 9; ICC Access Data, FY17-18, attached as Exhibit 10; and IHT Data, FY17-18, attached as Exhibit 11. As the State s own data reports demonstrate, for the better part of the remedial phase of this case, the defendants consistently have failed to meet 20

25 Case 3:01-cv MAP Document 857 Filed 09/10/18 Page 25 of 46 and not even come close to meeting their Medicaid access standard that requires an appointment with an ICC or IHT clinician within 14 days of a request. The defendants representation that 78% of youth began ICC treatment within 14 days (SMF, 47) is, at best, misleading. Their supporting documentation is a compilation of seven years and 11 months of data. But a monthly breakdown of their data, especially for the three most recent fiscal years as set forth below, demonstrates the fallacy of that representation and underscores the unsustainability of their claim. In fact, over the 36-month period from July 2015 through June 2018, the defendants only achieved 78% compliance three times: November 2015, December 2015 and October They ended fiscal year 2017 at a low of 49%; they started fiscal year 2018 at 50% and ended it at 53%. 13 Figure 1: ICC 14-DAY ACCESS RATES FY 2018, FY 2017, FY 2016 FY days FY days FY days June % June % June % May % May % May % April % April % April % March % March % March % Feb % Feb % Feb % January % January % January % Dec % Dec % Dec % Nov % Nov % Nov % October % October % October % Sept % Sept % Sept % August % August % August % July % July % July % At the end of 2017, the defendants were dramatically noncompliant with the 14-day access standard for ICC and IHT. According to MassHealth s own data that it presented to the Court, only 58.7% of youth and families received an initial appointment with ICC within See CSA Monthly Reports, FY16-FY18, Report 4: Distribution of Time from Request to Date Offered for Initial Appointment. 21